Volume 95 — Indiana Reports

<p>Descents. — Inheritance from Adopted Child. — Rule of Inheritance. — Where an adopted child dies intestate, unmarried and without lawful issue, or their descendants, surviving him or her, seized of real estate or owning personal property, which may have come to such child by gift, devise or descent from the adopting parent or parents, father or mother, such real estate or personal property shall descend to the adopting father or mother, if living, or, if dead, to the heirs at law of such adopting father or mother, to the entire exclusion of the natural heirs of such adopted child from any share or interest therein. Barnhizel v. Ferrell, 47 Ind. 335, so far as it is in conflict with this case, is overruled.</p> <p>Law of the Case. — Former Appeal. — Point in Judgment. — Supreme Court.— Where there is a second appeal, the points in judgment, the questions ' which were before the court and decided, on the former appeal, will not be re-heard or re-examined by the Supreme Court on such second appeal, but will be adhered to as “ the law of the case.” But this rule will not preclude the Supreme Court from considering and deciding, on the second appeal, any questions which might have been, but were not, considered and decided as the case was presented on the former appeal.</p> <p>Pleading. — Supplemental Complaint. — Under section 399, R. S. 1881, a supplemental complaint is neither an amended complaint nor a substitute for the original complaint; but it is a further complaint, which, assuming that the original complaint is to remain in the record, alleges new facts which have occurred after the filing of such original complaint."</p>

<p>From the Shelby Circuit Court.</p>

<p>From the Newton Circuit Court.</p>

<p>Telegbaph Companies. — Complaint to Recover Penalty for Failure to Transmit Message. — Statute Construed. —Section 4176, R. S. 1881, is penal and must be strictly construed, and in a suit before a justice of the peace to recover the penalty, the complaint must aver, and the evidence prove, that the s.ender of the message had paid of tendered the usual charges, at the time of sending it.</p>

<p>Auditor of State. — Duly to Draw Warrants. — Mandate.—When the amount of a claim against the State has been ascertained as prescribed by law, and money in the treasury has been appropriated to pay it, the auditor of State may be compelled by mandate .to draw a warrant therefor, but not otherwise.</p> <p>Same. — Legislative Appropriation. — Brevier Reports. — The act of January 9th, 1883, making an appropriation to pay the expenses of the 53d General Assembly, did not appropriate any money to the payment of expenses of any former General Assembly, nor could payment for Brevier Reports of proceedings and debates of that General Assembly be made out of said appropriation, in the absence of a definite allowance therefor made by the concurrent action of the two houses, which was not done.</p> <p>Same. — Legislative Power. — Separate and Concurrent Resolutions of Each Branch of General Assembly. — Separate resolutions of each house, authorizing payment for Brevier Reports, could not amend or vary the provisions of the statute, which required concurrent action of the two houses.</p>

<p>From the Marshall Circuit Court.</p>

<p>From the Henry Circuit Court.</p>

<p>From the Superior Court of Marion County.</p>

<p>Towns. — ■Ordinances.—Publication.—Pleading befwe Justices. — In a suit before •a justice of the peace for the violation of a town ordinance, it is not necessary to aver that the members of the board of trustees which passed it were duly elected, nor that they had authority to pass the ordinance, nor that it had been published.</p> <p>Same. — Constitutional Laxo. — Penalty.—Ixnprisonxnent. —A penalty for the violation of a town ordinance is not a debt, in the sense of the Constitution, which forbids imprisonment for debt.</p>

<p>From the Lagrange Circuit Court.</p>

<p>Gravel Roads. — Appeal.—County Commissioners. — One who, in proper time, files an affidavit showing a substantial interest in the subject, and that he is aggrieved, and a proper bond, has a right to appeal from an order of the county commissioners establishing and ordering the construction of a gravel road, though he did not appear before the board.</p> <p>Same. — Trial.-—In such case the circuit court tries the cause de novo, and does not sit as a court for the correction of errors.</p>

<p>From the Hendricks Circuit Court.</p>

<p>From the White Circuit Court.</p>

<p>From the Randolph Circuit Court.</p>

<p>"Telegbaph Company. — Failure to Transmit Message. — Complaint.—Copy of Telegram. — In an action against a telegraph company, to recover the statutory penalty for failure to transmit a message, the complaint need not set out a copy of the message.</p> <p>Same. — Contract Exempting Company Void. — Limitation.—A contract between the company and the sender, absolving the former from liability for its negligence, is void, but a contract that claims for such damages must be presented within sixty days after the act complained of is valid.</p> <p>■Same. — Statute Constitutional. — The statute of this State making telegraph companies liable to a penalty for failure to transmit, etc., is not in violation of the Federal Constitution.</p> <p>■Same. — Negligence beyond State Limits. — -Such action lies where the act complained of occurred beyond the limits of this State, if the message was delivered to the company within this Slate.</p>

<p>From the Huntington Circuit Court.</p>

<p>From the Huntington Circuit Court.</p>

<p>From the Noble Circuit Court.</p>

<p>Criminal Law. — Notary Public. — Seal need not Contain Name of County.— Attestation of Affidavit. — The seal of a notary public attesting an affidavit made before him need not contain the name of the county where the notary resides, or for which he was appointed.</p> <p>Same. — Pointing Firearm. — Act of 1S8S. — The act of March 5th, 1883, Acts 1883, p. 107, “ concerning the use of firearms,” makes criminal the pointing of a gun or other firearm at another purposely, whether it be done-with wicked intent or in mere foolishness.</p> <p>Same. — Pointing Gun at One Within his Dwelling. — One who angrily seeks, another, who is sheltered in his dwelling, and purposely points a gun at the dwelling-house door, daring him to come out, and threatening to shoot him, is amenable under such statute.</p>

<p>Contbact. — City. — Construction of Sidewaücs —Assignment of Estimates.— Suit Against Assignor and Assignee for Materials Furnished.. — Consideration.— Rescission must be Pleaded.— Want of Consideration must be Pleaded. —Evidence. — Omission of Venue. — Demurrer.— Uncertainty. — Material Man. — Mechanic’s Li.en. — S., having entered into a contract with a city to grade and pave certain sidewalks, assigned all his “ interest in the estimates for” such “grading and paving,” in writing, to H,, who agreed therein “ to receive the estimates when out and proceed to collect the same and pay all claims for material due for said work.” Complaint by F. against S. and H., for material sold by F. to S. and used in said work, and alleging the making of estimates by the city engineer, their delivery to S., his delivery thereof to H., who proceeded to collect the same and paid part of F.’s claim, and that F. had notified H. that he, F., accepted his, H.’s, promise to pay.</p> <p>Held, on demurrer by H., that the assignment of the estimates to H. purport a good consideration for his promise to pay.</p> <p>Held, also, that S. and H. might have rescinded the assignment, but to avail themselves thereof as a defence, they must specially plead it, and, therefore, that the complaint need not negative a rescission.</p> <p>Held, also, that to avail themselves of want of consideration as a defence, the defendants must specially plead it, and that evidence thereof is not admissible under the general denial.</p> <p>Held, also, that it was not necessary to allege that the plaintiff had first attempted and failed to collect the debt from S.</p> <p>Held, also, that the omission of the complaint to state the court in which suit was brought is.not presented by the demurrer.</p> <p>Held, also, that it was not necessary to allege that the material used had been furnished for the sidewalks in which it was uséd. The material man’s lien law does not apply.</p> <p>Held, also, that, after verdict, no question is presented by the demurrer because of the failure to allege that S. had not merely proceeded to collect, but had collected the estimates.</p> <p>Same. — Maintenance.—Surety’s Sight to Maintain Suit Against Principal.— In such action, the defendants having answered that S. had given bond to the city, with surety, to secure payment of claims for material, that such surety had paid F.’s claim, and that F. had brought this action solely for the benefit of the surety, the plaintiff replied setting out an agreement by the surety with F., to pay him the amount of his claim, interest, costs and attorney’s fees if the action was defeated, and, if successful, to pay him the amount of the fees, judgment, costs and attorney’s fees.</p> <p>Held, on demurrer, that the surety had an interest in having the action prosecuted, and, therefore, was not illegally maintaining a suit, that the plaintiff is the real party in interest, and that the reply is sufficient.</p> <p>Same.— Joint Motion in Arrest not Available as to Separate Defendants. — Supreme Court. — Practice.—In such action, no demurrer having been filed to the complaint by S., and there being no assignment of error questioning its sufficiency, no question as to its sufficiency against S. is presented to the Supreme Court by an alleged error in overruling a joint motion by S. and H. in arrest of judgment.</p> <p>Same. — Amending Complaint After Trial.— Variance. — It is not error to permit the plaintiff to so amend his complaint as to conform to the evidence, where the defendant has not been misled by the erroneous averment.</p> <p>Same. — Pleading Sejeated. — Bill of Exceptions. — Supreme Court. — Additional pleadings were tendered for filing after issues had been fully formed, were rejected and exception taken, but no time given to prepare and file a bill of exceptions; the party complaining incorporated them at a subsequent term in a bill of exceptions containing alleged error in refusing a new trial.</p> <p>Held, that such pleadings are not in the record.</p>

<p>Supreme Court. — Appeal.—Complete Record. — Duly of Appellant. — Upon an appeal to the Supreme Court, it is the duty of the appellant to produce and file therein a complete transcript of the record, or so much thereof as will clearly show the error of which .he complains; otherwise the presumption will prevail that no such error exists.</p> <p>Practice. — Answer Rejected. — Bill of Exceptions. — Supreme Court. — Appeal.—• Where a motion to strike out or reject a paragraph of answer is sustained, such paiagraph will constitute no part of the record on an appeal to the Supreme Court, unless it is made so by bill of exceptions or an order of court.</p> <p>Pill oe Exceptions. — All the Evidence.— Funding. — Supreme Court.— Weight of Evidence. — The bill of exceptions must show affirmatively that it contains all the evidence given on the trial, or the Supreme Court will not consider or determine any question which depends upon the evidence for its proper decision, and the finding or verdict will not be disturbed, in any case, merely upon the weight of the evidence.</p>

<p>Pbactice. — Harmless Ruling on Demurrer. — Supreme Court. — Error in sustaining a demurrer to a paragraph of a pleading is not available, where the facts alleged therein are admissible in evidence under a remaining paragraph.</p> <p>Peomissoby Note.. — •Want of Consideration. — Pleading.—In an action on a promissory note, a plea that, as to all in excess of a certain part of the note, it “ was given without any consideration therefor,” is sufficient.</p>

<p>Evidence. — Admissions. — Estoppel. — Former Adjudication. — Partnership.— Suit between partners for an accounting, etc.; it appearing that the funds of the firm came to the hands of the defendant, he offered to prove that $225 thereof which he handed to the plaintiff for a partnership use the latter admitted he had used for himself. It appeared that the defendant and another, as partners, had before sued the plaintiff for this $225 and failed to recover it. The evidence offered was rejected.</p> <p>Held, that this was error.</p>

<p>Criminal Law. — Assault with Eeloniom Intent. — Instruction.—Upon an indictment for assault and battery with intent to commit murder, there may be conviction of assault and battery with intent to commit murder in the second degree, or voluntary manslaughter, or there may be a conviction for an assault and battery only, and to instruct that if no felonious intent be proven, conviction may be of such assault and bat- ' tery if the evidence warrants it, can not mislead the jury.</p> <p>Instructions. — That an instruction is not more specific, is no valid objection to it if it contain a correct general statement of the law.</p> <p>Same. — Exceptions.—Practice.—An exception to an instruction taken under section 535, B. S. 1881, which is not dated, presents no question in the Supreme .Court.</p> <p>Same. — Self-Defence.—Modifying Instructions. — An instruction was asked to the effect that a party assailed may take life to avoid very considerable bodily harm. The court modified this by the use of the word “great” ’ instead of “ very considerable.”</p> <p>Held, no error.</p>

<p>Tax Sale. — Limitation of Fifteen Years. — An action to enforce a lien acquired upon land by purchase thereof at tax sale is barred if not commenced within fifteen years after the right of action accrues.</p> <p>Same— Statute Suns from Sight to Leed and not from Late. — Such right of action accrues and the statute begins to run, not from the date of the tax deed, but at the time when the purchaser becomes entitled to his deed, and delay in obtaining such deed does not extend the time.</p> <p>■Same. — Taxes Subsequently Paid Selate Bach. - All taxes subsequently paid, and the right of action therefor, relate back to the time when the purchaser became entitled to his deed.</p>

<p>Contract. — Construction of. — Sale of Land. — Consideration Shown by Parol.— Pleading. — The mortgagor of certain land, the mortgagee, and another lien-holder entered into a written agreement providing that the mortgagee should purchase said lien-holder’s claim; should foreclose his own mortgage and procure title thereunder; should pay off certain other liens; should convey a specified portion of the land to the mortgagor’s wife, and should pay a certain sum, less said liens and mortgage, to the mortgagor, upon his conveying the mortgaged premises to the mortgagee, free. In an action by the mortgagor against the mortgagee, on said agreement, alleging performance by the plaintiff, the defendant alleged performance by him, but averred that the holder of another lien, which plaintiff had agreed to pay, had redeemed from defendant’s purchase at foreclosure; that plaintiff had failed to pay off such other lien, and, therefore, could not make to the defendant a good title.</p> <p>Held, on demurrer, that the answer is good, that the consideration of the agreement might be shown by parol, and that defendant’s written agreement to make certain payments only excludes the idea that he was to make other payments.</p>

<p>From the Warren Circuit Court.</p>

<p>Taxes. — Complaint to Enjoin Sale of Land /or. — A complaint to enjoin the sale of lands for taxes, which shows that the taxes have been paid, and also that the former owner against whom the taxes were assessed had abundant personal property subject to distress and sale for the taxes, shows two good reasons for the injunction.</p> <p>Supbeme Coubt. — Harmless Eror. — Eoidence.—The admission of improper evidence, which it affirmatively appears did not affect the verdict, is a harmless error and not available in the Supreme Court.</p>

<p>From the Whitley Circuit Court.</p>

<p>From the Superior Court of Allen County.</p>

<p>From the Henry Circuit Court.</p>

<p>Will. — Construction of. — Devise to One and “Her Children After Her." — Life-Estate. — A testator, after devising a portion of his estate to his children “ as tenants in common,” but that the share of one daughter should be less than the shares of the other children, provided that her share “shall descend to her and her children after her, free from and beyond any control of her husband, ’* * and unincumbered from any of the debts and liabilities of his, forever.”</p> <p>Held, that she took in fee-simple, and not a mere life-estate.</p>

<p>Supreme Court. — Bill of Exceptions. — Record.—Evidence.—The evidence, when embodied in a bill of exceptions duly signed and filed, forms part of the record, no matter by whom it was taken down at the trial.</p> <p>Same. — Instructions.—Motion for New Trial. — Neither an instruction to the jury nor instruments of evidence can be made part of the record by merely referring thereto in a motion for a new trial.</p> <p>Instructions. — Request for Written. — Statute Mandatory. — The statute, requiring that “ the court shall give general instructions to the jury * 9 in writing, if required by either party,”- is mandatory, and, in such case, the giving of an oral instruction is erroneous.</p> <p>Same. — Oral Directions. — Oral directions to the jury to reject evidence, or as to the form of their verdict, are not “ instructions,” but statements of rules of law governing the matters in issue or the amount of recovery are.</p>

<p>From the Montgomery Circuit Court.</p>

<p>Supreme Court.— Waiver of Error. — Errors assigned and not discussed will be assumed not to exist.</p> <p>Same. — Judgment, Review of. —New Tried. — Evidence.—Record.—In a bill to review for error apparent of record, on the ground that the court erred in overruling a motion for a new trial, no question is presented as to the sufficiency of the evidence or the amount of damages, unless the evidence was made a part of the record.</p> <p>Same. — Complaint.—An averment in the complaint that a full transcript of the evidence is filed is not sufficient, as this may be done, and yet the evidence may not have been made a part of the record.</p> <p>Instructions.- — Presumption.—In the absence of the evidence, and of a statement that instructions refused were applicable to the evidence, those refused will be deemed to have been properly rejected for such reason, and those given properly given, unless erroneous under any supposable state of facts.</p>

<p>From the Montgomery Circuit Court.</p>

<p>From the Clinton Circuit Court.</p>

<p>Mortgage. — Description of Real Estate. — A description of real estate in a. mortgage, that may be rendered certain by averment, is not void for uncertainty.</p> <p>Same. — In describing a parcel of land as being north of the “ground of the C. C. C. & I. E. E.” the use of the word “ground,” instead of the “right of way,” does not render such description void.</p> <p>Same. — Replevin Bail. — Subrogation.—A replevin bail upon a judgment recovered upon a note secured by a mortgage,.when compelled to pay the judgment, is entitled to be subrogated to’ all of the rights of the mortgagee under the mortgage.</p> <p>Same. — Foreclosure.—Such bail is not compelled to exhaust the property of the. judgment debtor by execution before he can foreclose such mortgage..</p> <p>Same. — Mistake in Description.- — Reformation as Against Subsequent Bona Fide Purchaser. — A mortgage which fails to describe the land intended to be mortgaged can not be reformed and foreclosed against a subsequent bona fide purchaser, but may be against a subsequent purchaser with notice of the mistake.</p> <p>Same. — Notice.—A mortgage which contains a defective description may be reformed and foreclosed against a subsequent purchaser for value, without actual notice, as the description may be rendered certain by averments, and such descriptions are not void, but are sufficient to put all purchasers upon inquiry and thus to charge them with notice.</p> <p>.Same. — The fact that the mortgagor, at the rendition of the judgment, owned a large amount of other real estate upon which it became a lien, does not preclude such bail from foreclosing the mortgage, nor does the fact that a third party, to whom a portion of such land was conveyed, agreed to pay the judgment prevent the foreclosure of such mortgage, as these remedies are merely cumulative, and neither is dependent upon the enforcement of the other.</p> <p>Redemption. — Where the holder of a certificate of purchase receives the redemption money, the redemption is complete whether the person paying the money was legally entitled to redeem or not.</p> <p>•Same. — Purchaser of Certificate of Sale A filer Redemption. — A purchaser of a certificate of sale after redemption can acquire no title through such certificates though he had no notice of such redemption at the time of such purchase.</p> <p>Same, — Purchase for Benefit of Owner. — Where the owner of the equity of redemption places means in the hands of another with which to redeem such property, and such other person thereafter purchases such certificate and transfers it to another, such purchase operates as a redemption of such property, and the last purchaser can not claim title through such certificate, though he had no notice of such redemption at the time his purchase was made.</p> <p>Subbogation. — Assignee of Judgment on Note Seemed by Mortgage. — Replevin Bail. — The assignee of a judgment, recovered upon a note secured by a mortgage, acquires by his purchase the mortgage, and bail upon the judgment upon payment is subrogated to all the rights of the assignee under said mortgage.</p> <p>Same. — Where A. holds two mortgages upon the same land, and the note secured by the senior mortgage is put into judgment, the judgment transferred, replevin bail entered and the judgment afterwards paid by the bail, such bail is entitled to be subrogated to all the rights of the assignee of such judgment against all persons claiming through the mortgagee under the junior mortgage.</p>

<p>From the Decatur Circuit Court.</p>

<p>Beal Estate. — Equitable Vendor. — Lien.— Volunteer. — Where B. furnished the money and paid for certain real estate for the use of a church as a parsonage and dwelling for the priest of such church, under an agreement that he was to have and hold such real estate and- a specific lien thereon, and the equitable title thereto, until the money so furnished was repaid to him; and where, under .such agreement, by the procurement of B. and in conformity with the polity of the church, the deed of the real estate • was made direct to D., a bishop of such church, who was a mere volunteer and paid nothing for such real estate,</p> <p>Held, that practically, as between B. and D., the former was the equitable ' vendor, and the latter was the vendee, of such real estate.</p> <p>Held, also, that for the amount of money so furnished and paid by B. in the purchase of the real estate, and remaining unpaid, he had the equitable lien of a vendor, and could enforce the same against the real estate in the hands of D.</p>

<p>Telegbaph Company. — Failure to Transmit Message.- — Contract.—Penalty.— While a telegraph company can not, by-contract, avoid the liability for the penalty imposed by B. S. 1881, section 4176, it may contract that a claim for that penalty shall be made to it within a reasonable time, and in the absence of special circumstances, sixty days is not unreasonable.</p>

<p>Pleading. — Justice of the Peace. — Complaint against Bailroad Company for Killing Stoeh. — A complaint before a justice of the peace against a railroad company, averring that, ón, etc., at, etc., the defendant’s servants wilfully and negligently, and without any fault’of the plaintiff, ran its cars upon plaintiff’s mare, whereby, etc., is sufficient after verdict.</p> <p>Same. — Appeal.—Practice.—Where on appeal from a justice of the peace, the complaint is amended in the circuit court, its sufficiency is to be determined by the rules of pleading before justices of the peace.</p> <p>Instiujctions. — An instruction will be reviewed in connection with others given, and, thus considered, if the law be correctly stated, there is no error.</p>

<p>From the Superior Court of Marion County.</p>

<p>From the Lawrence Circuit Court.</p>

<p>From the Washington Circuit Court.</p>

<p>Decedents’ Estates. — Creditors Paid, by Widow. — Subrogation.—A widow has such an interest in the settlement of her deceased husband’s estate as will, where it is beneficial to such estate, subrogate her to the rights of creditors of the estate whose claims she has paid off, or whose claims have been paid by the executor or administrator with money advanced by her for that purpose.</p> <p>Same. — Administrator can not Bind Estate. — Contract.—Her right to be reimbursed in such case depends solely on the doctrine of subrogation, and not on any contract made by her with the executor or administrator.</p> <p>Same. — Endence.— Validity of Claim. — Limitations.—Where she seeks to he subrogated in such case, the evidence must show that claims paid off by her were valid claims against the estate,' and that her right to recover is not barred by the statute of limitations.</p>

<p>Supreme Court. — Finding.— Weight of Evidence. — Where the evidence is conflicting, the finding of the trial court will not be disturbed by the Supreme Court upon the mere weight of the evidence.</p>

<p>Practice. — Pleading.—Supreme Court. — Where the plaintiff’s reply is tested by demurrer, and the demurrer is overruled, no effort being made by him to carry it hack to the answer and no exception taken by him, the Supreme Court will not at his instance hold the answer bad.</p> <p>Lire Insurance. — Bight to Recover Premiums. — Where the risk has once attached, premiums can not be recovered, although the company may subsequently wrongfully declare a forfeiture of the policy.</p> <p>Same. — Right of Assured to Specific Performance. — Set-Off.—Foreclosure of Mortgage. — An agreement to issue a paid-up policy may he specifically enforced, but the right to specific performance can not be made the ground of a counter-claim to a suit by the insurance company to foreclose a mortgage executed to secure a loan of money.</p> <p>Same. — Contract.— Motive.— Consideration. — The premium paid, or agreed to he paid, for a policy of insurance is the consideration of the contract, and not the motive which induced the assured to take out the policy.</p> <p>Counter-Claim.- — Cross Complaint. — A counter-claim very closely corresponds to the cross bill of the chancery practice, but is more comprehensive, in that it includes recoupment.</p> <p>Same.— What Matters may he Pleaded. — A counter-claim can only be grounded on matters growing out of or connected with .the cause of action, and a matter constituting an entirely distinct cause of action, not connected with the matters stated in the complaint, can not be pleaded as a counter-claim.</p> <p>Same. — Por a very full discussion of the question, as to what is a counterclaim, see opinion.</p> <p>Demurrer to Evidence.— Who may Demur. — The party who has the burden of proof can not demur to the evidence.</p>

<p>Sheriff. — Action on Bond. — Failure to Satisfy Execution. — Complaint.—In an • action by an execution plaintiff, on a sheriff’s bond, for his failure to apply on the execution certain money made by sale of the debtor’s property on simultaneous executions, the complaint, after setting out the bond, judgment, execution, levy and sale, alleged that the sheriff had “failed and refused to apply said money or any part thereof, toward the satisfaction of said execution,” etc.</p> <p>Held, on demurrer, that the averment quoted negatives the idea that such money had been paid to the clerk, and is sufficient.</p> <p>Same. — Simultaneous Executions. — ■ Priority.— Judgment.— Time.— Where a number of judgments are rendered by a circuit court against the same defendant, on the same day, are duly signed on the next day, and, upon praecipes filed in immediate succession, executions are issued in like manner by the clerk, the issuing is but one transaction and no priority exists.</p> <p>Same. — Evidence.—Harmless Error. — Where, in such action, his returns show that several of the executions came to his hand at one time, and the others at a subsequent tixue, it is not competent, and it would be no defence, for him to prove that, in fact, all of such executions came to him successively, as thus issued, but error in admitting such px-oof, being in favor of the plaintiff, is one of which the latter can not be heard to complain.</p> <p>Same. — Contradicting Return. — A shex'iff may not, but others than his sureties may, contradict sxxch returns.</p>

<p>Principal and Agent. — Purchase by Agent of Principal’s Property at Sheriff’s Sale. — Title.—An agent employed to take care of and manage his principal’s property can not acquire any title thereto by purchase at sheriff’s sale, as against his principal, while such relation exists.</p> <p>Same. — Trust and Trustee. — Such agent can not acquire title to such property by such purchase without first severing such relation, and if any doubt exists as to his attitude, he will be deemed a trustee for his principal.</p> <p>Same. — Notice.—Burden of Proof. — When such agent attempts to sever such relation by notice, the burden is upon him to show that his principal was notified of such altered relation.</p> <p>Same. — •Acquiescence.—Notification.—A principal can not acquiesce in the-purchase of his property by his agent until he knows that such purchase has been made, and the onus of showing it is upon the agent.</p>

<p>Contract.— Church Subscription.— Consideration.— Object.— Performance.— Pleading. — Time of Payment. — Surplusage.—A subscription read: “We, the undersigned, agree to pay the sum set opposite our respective names to the trustees of,” etc., “for the purchase of a lot and the erection of a house of worship for the use of said' church, size of said house to be 40 by GO; said sums to be paid as follows: one-half on June 1st, 1875, and one-half on January 1st, 1876.” Complaint against a subscriber who was one of the trustees, to recover for his subscription.</p> <p>Held, on demurrer, that the consideration for each subscription is the other subscriptions.</p> <p>Held, also, that the complaint need not aver the completion of the house, such averment being surplusage.</p> <p>Same. — Answer.—An answer in such action, alleging that the house built was of different dimensions from that stated in the subscription, is insufficient.</p> <p>Same. — Delivery Part of Execution.— Denial.— Confession and Avoidance.— The delivery of a subscription is as much a part of its execution as is the signing thereof, and a denial of its delivery is a denial of its execution, and such answer can not embody matter properly pleadable in confession and avoidance only.</p> <p>Practice. — Amending Pleading Waives Puling on Demurrer. — Error in sustaining a demurrer to a pleading is waived by amending the pleading.</p> <p>Same. — Answer to Whole Complaint Bad as to One Paragraph. — An answer to the whole of a complaint containing several paragraphs must, to withstand a demurrer, be sufficient as to each paragraph.</p>

<p>Practice. — Cross-Examination of Witness. — Discretion of Court. — Abuse of.— A very wide. latitude is necessarily allowable in the cross-examination of an adverse witness, and how far it may be extended, in any case, is a question largely in the discretion of the trial court; and unless there is manifest abuse of such discretion, its exercise will afford no sufficient ground for the reversal of the judgment.</p> <p>Instructions.— Harmless Hr or. — Verdict. — Evidence. — Supreme Court.— Where the verdict is in accordance with the evidence, and just and right upon the merits, itwill not be disturbed by the SupremeCourt, on account •of error in the instructions.</p>

<p>Negligence.— Sailroads.— Wilful Injwy.— Gross negligence is not, as a matter of law, wilfulness; and in a suit against a railroad company for an injury resulting from such negligence, recklessness or wantonness, contributory negligence on the part of the plaintiff is a defence.'</p> <p>Same.' — •Trespasser.—A railroad company is not liable for an injury to a trespasser upon its right of way unless wilfully inflicted.</p>

<p>Criminal Law.— Unlawful Sale of Intoxicating Liquor. — Jwor.—Competency. —A juror who believes that a moral man would not sell whiskey, and who would not as readily believe the testimony of one who so sells as he would that of a moral man, but who thinks he can nevertheless give the defendant an impartial trial, is not incompetent in a prosecution for selling liquor without license, it not appearing that the defendant was engaged in the sale of intoxicating liquors, or that the jurors were prejudiced against defendant.</p> <p>Same. — Evidence.—Premises.—Proof upon trial of an indictment for the unlicensed sale of liquor to he drank on the defendant’s premises, that the liquor was drank on the lot on which the defendant’s shop was situated, out of glasses furnished by him, and that the same place was used for drinking by the defendant’s customers, with his knowledge and consent, is admissible upon the question whether that place was on his premises.</p>

<p>From the Switzerland Circuit Court.</p>

<p>Guabdian and Wabd. — Failure to File Inventory. — Removal. — The removal of a guardian for failure to file an inventory within three months ' from his appointment, as required by section 2521, R. S. 1881, is much in the discretion of the court, and its action in refusing to remove will not be reversed if an excuse be shown for the guardian’s failure, which, is not clearly insufficient.</p>

<p>Contribution. — Equities Between Purchasers of Mortgaged Premises. — Where a mortgagor sells, and by warranty deed conveys, a part of mortgaged lands, such deed exempts the part sold from contribution to either the mortgagor or a subsequent purchaser of the residue of such lands.</p> <p>Same. — Second Purchaser can not Enforce Contribution Against First. — Redemption by Wife. — If foreclosure be had in such case against both purchasers, and, under a proper decree, the lands of both be sold, neither the last purchaser nor his wife, on redeeming from such sale, can compel the first purchaser to contribute.</p> <p>Same. — Irregularity in Rendering Judgment. — It can make no difference in such case, that decree was entered, on default of the second purchaser, by agreement between the plaintiff and the first purchaser, but without notice to or cross complaint against the second purchaser, that the land of the latter should be first offered for sale.</p>

<p>From the Marion Circuit Court.</p>

<p>From the Cass Circuit Court.</p>

<p>From the Lawrence Circuit Court.</p>

<p>From the Elkhart Circuit Court.</p>

<p>From the Montgomery Circuit Court.</p>

<p>From the Washington Circuit Court.</p>

<p>From the Kosciusko Circuit Court.</p>

<p>Fraudulent Conveyance. — Action to Set Aside. — Amomt Exempt from Execution. — A voluntary conveyance may be avoided by creditors upon allegation and proof that the debtor, at the time he made the conveyance, had no other property than that which he could claim as exempt from execution.</p> <p>Practice. — Defect in Special Finding.— Venire De Novo. — Exception.—A defect in a special finding can be reached by a motion for a venire de novo, but not by an exception to the conclusions of law.</p>

<p>From the Monroe Circuit Court.</p>

<p>Verdict. — Interrogatories to Jury. — Supreme Court. — Answers by the jury to special interrogatories returned with a general verdict will not be considered by the Supreme Court, unless it appears by the record that the court, at the request of a party, sent them to the jury.</p> <p>Negligence. — Excavation.-—When the public have by permission travelled on foot for years over an open city lot, it is the duty of the owner, upon making an excavation in the pathway, with a view to erecting a building, to put some guard or warning for public protection, and a failure to do so gives a right of action to one who, without fault, is injured thereby.</p> <p>Same. — Evidence.—In such case evidence showing such public use of the pathway is admissible.</p> <p>Same. — Damages.—In such case evidence that the person injured was poor and depended on labor for support may be admissible, as tending to prove that cessation from labor after the injury was caused by the injury.</p>

<p>From the Hamilton Circuit Court.</p>

<p>From the Tipton Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Practice. — Trespass.—Damages.—New Trial. — Supreme Court. — Error in awarding too small an amount as damages in an action for an alleged trespass in ejecting the plaintiff from a. house, must be made ground of a motion for a new trial, or it can not be considered by the Supreme Court on appeal.</p> <p>Same. — Costs.—Where, in such an action, the plaintiff recovers but one cent damages, he is entitled to judgment for but one cent costs.</p> <p>Same. — Record.—Title to Real Estate. — Presumption.—Where, on appeal to the Supreme Court, the record does not contain the answer and all the evidence, that court can not determine whether the title to real estate was in issue, and must presume that the judgment below was right.</p>

<p>From the Tippecanoe Circuit Court.</p>

<p>From the Montgomery Circuit Court.</p>

<p>From the Shelby Circuit Court.</p>

<p>From the Henry Circuit Court.</p>

<p>From the Grant Circuit Court.</p>

<p>Real Estate, Action to Recover. — Description.—Complaint.—Assignment of Error. — ■ Defects Cured. — Amendment.—Supreme Court.— Presumption.— Where, in an action affecting real estate, the description set out in the complaint is such as might have been amended in the trial court, and might have been made good by the evidence, the Supreme Court will presume in favor of the verdict, where the question as to such description is first made by an assignment of error attacking the complaint.</p>

<p>From the Jackson Circuit Court.</p>

<p>Supreme Court .— Evidence Excluded. — New Trial. — Practice.—Where alleged error in the exclusion of evidence is not made a cause in a motion for a new trial, it can not be considered by the Supreme Court on appeal.</p> <p>Same. — Pleading Rejected. — Bill of Exceptions. — Error in refusing a pleading offered must bo made part of the record by a bill of exceptions.</p> <p>Same. — Time of Filing. — Record.—To constitute a bill of exceptions part of the record, it must affirmatively appear by the record that the bill of exceptions, filed after the term, was filed within the time fixed by the court.</p> <p>Same. — Brief.—See opinion for a brief held not to comply with the rule of the Supreme Court.</p>

<p>From the Wayne Circuit Court.</p>

<p>DbAisage. — Petition.—Description.—A petition for drainage under the act of March 9th, 1875, was only required to describe generally the starting point, route and terminus of the work proposed. It need not be particular or exact.</p> <p>Same. — Practice.—Supreme Court. — In such case a motion to dismiss the petition, based on facts found by the court to be untrue, can not be considered by the Supreme Court.</p> <p>Same. — Appeal.—Jurisdiction of Circuit Court. — County Commissioners. — On appeal to the circuit court in such cases, its jurisdiction is not affected by the fact that the order of the county board appealed from was entered1 at a time when the board had no power to act upon the matter.</p> <p>Same.— Parlies. — One, through whose lands the drain will run, must be a party to the proceedings by notice or otherwise, and unless this appear on the trial the whole proceeding must fail.</p>

<p>From the Hancock Circuit Court.</p>

<p>Contract. — Complaint.—Husband and Wife. — Street Improvement. — A complaint against husband and wife alleged a contract by which the plaintiff undertook to make certain improvements on a street adjoining a lot of the wife, for which the defendants were to pay him a certain sum which the wife agreed should be a charge upon the lot; that the plaintiff performed the work according to the contract, and the defendants, though requested, refuse to pay. The plaintiff having dismissed as to the wife, the husband demurred for want of facts.</p> <p>Held, that the complaint, though informal, was good on demurrer.</p> <p>Same. — In an action upon a contract where the general averments of the complaint show that the claim is due and unpaid, the complaint is sufficient without averring such facts in terms.</p> <p>Statute oe Frauds. — One who, upon his own credit, employs another to perform work for a third person, is liable for its payment.</p>

<p>Infobmation. — Ousting Officer of Pl'imte Corporation. — -Fraud.—Where an information, seeking the ouster of an officer of a private corporation, alleges facts showing the election of such officer at an illegal meeting of the directors of the corporation, and showing fraud practiced by the officer in deceiving the relators, directors, as to the time of such meeting, it is not necessary to allege that, had the relators been present, they would have voted against such officer.</p>

<p>From the Madison Circuit Court.</p>

<p>County Superintendent. — Statistics.—Fees and Salaries. — The duty imposed on the county superintendent of schools to make reports to the bureau of statistics, by section 5720, R. S. 1881, is an official duty imposed upon the officer, for which he is not entitled to compensation.</p>

<p>From the Warren Circuit Court.</p>

<p>From the Elkhart Circuit Court.</p>

<p>From the Kosciusko Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Special Verdict. — Judgment.—A plaintiff is not entitled to judgment on a special verdict which does not find all the facts which it was necessary he should prove.</p> <p>Same. — New Trial — Practice.—Where a special verdict fails to find the facts which were established by the evidence, a motion for a new trial is the proper remedy.</p> <p>Contract. — Broker.—Lien.—Loan Agent. — One employed to obtain a loan upon a commission has a lien on the fund for his fees, and may retain them.</p> <p>Same. — Construction.—Where the terms of a contract are of doubtful inport, the construction which the parties placed upon it by their acts will prevail.</p> <p>Same. — Performance.—Excuse for Non-Performance. — Where one party to a contract notifies the other that he will not perform it, performance by the other is unnecessary.</p>

<p>Costs. — Dismissal.—Practice.—A plaintiff in ejectment, in consequence of the admission of evidence which it had been agreed in writing by the defendant’s attorney should not be offered, moved to dismiss his cause without prejudice, and to tax all costs accruing after the agreement to the defendant and his attorney. Without objection the court granted the motion to dismiss, and took the question of costs under advisement. Afterwards the motion as to costs was overruled.</p> <p>Held, that there was no error, and that the question is not presented to the Supreme Court by the appeal from the ruling.</p>

<p>Criminal Law. — Obstructing Railroad. — Indictment.—An indictment for obstructing a railroad track, under R. S. 1881, section 1960, if it follow the language of the statute, need not state evidence from which it will appear that the obstruction was such as would endanger the passage of trains or throw engines or cars from the track.</p> <p>Same. — New Trial. — Separation of Jury.--In a criminal case the separation of the jury'after retirement to deliberate, unattended by an officer, without leave of court, though made a cause for new trial by statute, R. S. 1881, section 1842, yet, in view of section 1891, the Supreme Court can not reverse on that ground where it affirmatively and clearly appears that the substantial rights of the defendant suffered no injury; but if in such case there be a doubt of guilt from the evidence, or whether the the jury were tampered with, it will reverse.</p>

<p>Novation. — Partnership.—At the instance of some of its creditors, an insolvent partnership was dissolved and a receiver appointed. While the concern was solvent, it became indebted to one of its members by notes, which he surrendered and took new notes, payable to his daughter, and handed them to her as an advancement. She afterwards assigned these to her step-mother, the wife of the creditor partner, for a consideration from him. There was no fraud, and after the insolvency the latter obtained a judgment upon them, and presented it for allowance out of the assets in the hands of the receiver.</p> <p>Held, that there was a novation by the substitution of 'the daughter as creditor of the firm, and that her assignee was not to be regarded as assignee of the notes surrendered, and, therefore, the judgment should be allowed as a general debt of the partnership.</p>

<p>Redemption. — Statute Construed. — Junior Judgment Creditor. — Execution.— Sheriff. — Levy upon and Sale of Property Redeemed. — Rents and Profits. — Appraisement. — Bid and Bidder. — Where real estate was sold in fee simple by the sheriff on execution, and was redeemed from such sale by a junior judgment dreditor, while the redemption act of March 31st, 1879 (Acts 1879, p. 176), was in force, and where such junior judgment creditor and redemptioner has sued out an execution on his judgment, with the additional recitals therein as provided in section 5 of such act, it is the duty of the sheriff first to levy such execution upon and sell the property redeemed, and the same estate therein redeemed, and at such sale the execution creditor is a forced “ bidder for his redemption money, with ten per cent, interest thereon, and all costs accrued since the redemption.’” In such case the rents and profits of the property redeemed can not be sold, and, therefore, the failure of the sheriff to cause an appraisement of such rents and profits will not vitiate or-avoid his sale of the property redeemed.</p>

<p>From the Vigo Circuit Court.</p>

<p>Fame Imprisonment. — Justification.—Marshal.—Constable.—To an action for false imprisonment against a marshal or constable, an answer, that the defendant found the plaintiff on the street intoxicated, and having just assaulted a citizen, and arrested and detained him three hours until he became sober, when a criminal charge was regularly made before a justice, and the plaintiff fined, etc., is good on demurrer.</p>

<p>Criminal Law. — Assault.—Assault and Battery. — Intent.—Indictment.—Duplicity. — Where the defendant is charged in technical terms, in a single count, with an assault, and an assault and battery, with the intent to ■commit a felony, for each of which offences the same punishment is prescribed in section 1909, B. S. 1881, there is no such duplicity therein as will afford sufficient ground for quashing the indictment.</p> <p>Same. — Change of Judge. — Change of Venue. — Affidavits and Counter Affidavits. Bill of Exceptions. — E-ror.—Supreme Court. — Where applications are made to the trial court for either a change of judge or a change of venue from the county, the affidavits and counter affidavits filed in connection therewith must be made parts of the record by a bill of exceptions, or the rulings thereon will not constitute such errors as can be considered by the Supreme Court.</p> <p>Same. — Prosecuting Attorney. — Additional Counsel. — Discretion of Trial Court. It is in the discretion of the trial court to allow additional counsel to assist the prosecuting attorney in the prosecution of a criminal cause, and, unless the record affirmatively shows an absolute abuse of such discretion, the Supreme Court will not be authorized to review its exercise.</p> <p>Same. — Idem Sonans. — Names.—Question of Fact.■ — Whether two names of slightly variant orthography are, or are not, idem sonans, is a question of fact for the jury, and not of law for the court.</p> <p>Same. — Instructions.—The instructions of the trial court to the jury are construed by the Supreme Court with reference to each other, and as an entirety; and if, thus construed, the entire instructions present the law fairly and correctly, and are not calculated to mislead, the judgment, will not be reversed thereon, even though a single expression, detached from its context, might be erroneous.</p> <p>Same. — Merger.—Jurisdiction of Justice of the Peace. — Former Acquittal or Conviction. — An assault, or an assault and battery, is merely a misdemeanor, but, when committed with the intent to commit a felony, it becomes itself a felony wherein the misdemeanor is merged; and, as a justice of the peace has no jurisdiction to try and acquit or convict a defendant charged with a felony, when the jury find him guilty of the felonious intent charged, then it becomes the duty of the jury, without regard to the proceedings before the justice, to convict the defendant of the felony-charged in the indictment.</p>

<p>Criminal Law. — Misconduct of Juror. — New Trial — To make the fact available as cause for a new trial, that a juror took notes of the evidence and read them in the jury room, no objection having been made, it must appear that riot only the defendant, but also his attorney, was not aware that the juror took notes.</p> <p>Same.— Verdict. — Practice.-—Neither the affidavit of a juror nor his statements can be used to overthrow a verdict.</p> <p>Same. — Supreme Court. — Evidence.—Where the court below hears evidence on a motion for a new trial on account of the misconduct of a juror, the Supreme Court will not weigh the evidence.</p> <p>Same. — Misconduct of Witness. — The misconduct of a witness for the State is not cause for a new trial. • -</p> <p>Same. — Duty and Conduct of Judge. — A judge presiding at a criminal trial is not a mere moderator, but has active duties to perform, without partiality, in seeing that the truth is developed, and to that end he may put proper questions to witnesses.</p> <p>Same. — Evidence.—It being a question whether the defendants were present when the shots were fired, evidence that one .of them was shortly after seen not far away getting over his back fence, and being asked what was-the matter, said, “It’sDave and S.,” the name of the party into whose house the shots were fired, is proper as against himself.</p> <p>Same. — Instructions.—The'giving by the court to the jury of forms of verdict applicable in case of conviction, none being asked or given applicable to acquittal, is not error.</p> <p>Same. — Assault and Battery. — Harmless Error. — Upon an indictment for assault and battery, with intent to commit murder in the first degree, the jury so found, assessing the lowest penalty allowed by section 1909, E. S. 1881.</p> <p>Held, that an erroneous instruction, defining the case proved as evincing an intent to commit murder in the first degree, instead of an intent to commit manslaughter, was harmless.</p>

<p>Practice. — Interrogatories.—Discretion of Court. — The court may, but need not, in its discretion, receive interrogatories to be put to the jury, after the argument has begun.</p> <p>Same. — Instructions.—Supreme Court. — Where the instructions given are not in the record, alleged error in refusing instructions asked is not available.</p> <p>■Contract. — Consideration.—Conditional Sale. — Promissory Note. — A contract for the payment of money, showing the actual consideration to be an .article of personal property, and stipulating that the purchaser’s title is dependent upon such payment, will support a complaint thereon for recovery of the money.</p> <p>Same.— Warranty. — Evidence—-Evidence of a verbal warranty will not sustain a plea alleging a written warranty.</p> <p>Same. — Pleading.— Rescission.— Tender. — In an action to recover for the price of an article sold, where the defence is a breach of warranty and rescission, the answer should allege either that the property had been tendered back, or that it was worthless.</p> <p>Practice. — ■Answers to Interrogatories. — Judgment Non Obstante. — Where the answers to interrogatories are irreconcilable with the general verdict, the former must prevail.</p>

<p>Supreme Court. — Informal Demurrer. — Where it appears from the record that the parties and trial court understood a certain demurrer to he addressed to a certain pleading to question its sufficiency, the Supreme Court, on appeal, will so regard the demurrer, notwithstanding it may have been informal.</p> <p>Railroad. — Killing Slock. — Failure to Fence. — Negligent Killing. — CounterClaim. — In an action against a railroad company, to recover for the value of a horse killed by the defendant’s cars, wherein one paragraph of the complaint was based upon the defendant’s failure to fence its track, and another alleged a negligent killing, the defendant could not set up, by way of counter-claim, that the plaintiff had negligently suffered his horse to stray upon the track, where the cars ran upon it, and were thrown from the track, causing the defendant great damage, for which judgment was demanded.</p> <p>Same. — Presumptim.—See opinion for facts authorizing presumption of the killing of the animal by the defendant’s cars.</p> <p>Same.— Verme. — Evidence.—Presumption.—Where such action is based upon the failure of the company to fence, it must be brought in the county where the killing occurred, but when it is based upon alleged negligence, it may be brought in any county through which the railroad runs. If such action be based on both these grounds, the Supreme Court, in the absence of evidence of the venue, will presume that a general- finding or verdict was based upon the paragraph alleging negligence.</p> <p>Same . — Judicial Notice.— Venue. — The Supreme Court takes judicial cognizance of county boundaries, and that a certain distance from a place named in a county is within that county. Louisville, etc., P. W. Go. v. Breckemidge, 64 Ind. 113, on this point, overruled.</p> <p>Supreme Court. — Evidence.—Harmless Error. — Where a material fact is established by competent and uncontradicted evidence, the Supreme Court will not reverse the judgment because some incompetent evidence was admitted on the same point.</p>

<p>From the Huntington Circuit Court.</p>

<p>Partition. — Proceeding In Bern. — Parties.—Notice.—An action for the partition of real estate is a proceeding in rein, and all persons having an interest in the property, either as owner or lien-holder, at the commencement of the suit, are proper parties to such proceeding, and all persons dealing with the property, pendente lite, are affected with notice of the orders and proceedings had therein and are bound thereby.</p> <p>Same. — Beceiver.—Sale of Properly. — Delivery of Possession to Purchaser. — Attachment or Writ of Possession. — Pending a suit for partition, the court may, upon a proper showing, appoint a receiver to take possession and care of the property, collect rents, etc.; and where the proceedings result in the sale of the property, the court may order the delivery of possession to the purchaser, and may enforce such order by an attachment against the person, upon a rule to show cause and an insufficient showing, or by writ of possession.</p> <p>Pleading. — Motion.—Demurrer.—Assignment of Error. — Supreme Court. — A motion for the issue of a writ is not a complaint, nor is it the subject of a demurrer; and after a hearing had and a decision made in favor of the moving party, the sufficiency of such a motion can not be called in question, for the first time, by an assignment of error in the Supreme Court.</p>

<p>From the Rush Circuit Court.</p>

<p>From the Lake Circuit Court.</p>

<p>From the Gibson Circuit Court.</p>

<p>Decedents’ Estates. — Payment.—Pleading.—A general plea of payment to a claim against an estate, without stating time, is good on demurrer.</p> <p>Same. — Statute of Limitations. — To a claim upon an account against an intestate’s estate, a plea, that the cause of action did not accrue within six years before bringing the action, is bad.</p>

<p>Voluntary Payment. — Protest.—Redemption of Real Estate from Sheriff’s Sale. — In an action to enforce a mechanic’s lien on real estate, the plaintiff recovered, and it was adjudged that a certain prior mortgage on the real estate, the mortgagee being a party and defaulted, was junior and subordinate to such lien. The property was purchased under the judgment by the judgment plaintiff. In a suit to review the judgment, brought by the mortgagee, judgment was rendered against him, from which ho appealed. The year for redemption from the sale being about to expire, and the mortgagor being insolvent, the mortgagee paid the redemption money to the clerk of the court for the purchaser, who received it from the clerk. At the time of the payment, the mortgagee notified the purchaser of the purpose of the former to prosecute an appeal, and filed with the clerk a written protest, reserving therein the right to recover the redemption money if the judgment appealed from should be reversed. After the expiration of the year for redemption the mortgagee through his appeal obtained such a reversal; afterwards the first named judgment was adjudged void as to the mortgagee. Thereafter, the mortgagee, having foreclosed his mortgage and having purchased the property and taken possession thereof under such foreclosure, demanded repayment of the redemption money from the purchaser who had so received it from the clerk.</p> <p>Held, that the payment was voluntary, and that the money so paid for redemption could not he recovered.</p>

<p>Supreme Court.— Weight of Evidence. — The Supreme Court will not award a new trial on the mere weight of the evidence.</p>

<p>From the Shelby Circuit Court.</p>

<p>From the Howard Circuit Court.</p>

<p>Supreme Court. — Assignment of Error. — Misjoinder in Error. — An assignment of error jointly by several appellants, showing error against one of them only, presents no question to the Supreme Court.</p>

<p>From the Fulton Circuit Court.</p>